Abrams v. Simon

• Decision Date: 13 May 1932
• Citation: 243 Ky. 773
• Parties: Abrams et al. v. Simon.
• Court: United States State Supreme Court — District of Kentucky

243 Ky. 773

Abrams et al. v. Simon.

Court of Appeals of Kentucky.

Decided May 13, 1932.

1. Landlord and Tenant. — Lessees' liability for accruing rent is not extinguished, unless unforseen casualty renders building untenantable (Ky. Stats., sec. 2297).

2. Landlord and Tenant. — In rent action, lessees had burden of showing that unforseen casualty rendered building untenantable and that lessor did not repair (Ky. Stats., sec. 2297).

3. Landlord and Tenant. — At common law, absent express stipulation to contrary, lessee remains liable for rent, notwithstanding destruction of building by unforseen casualty.

4. Landlord and Tenant. — Lessees' liability for rent held not extinguished where damages from water in protecting buildings from nearby fire did not render building untenantable (Ky. Stats., sec. 2297).

The leased building was not damaged by a fire on the adjoining premises, but, to protect it, fireman cut a hole in the roof and threw a large quantity of water therein damaging the lessees' goods on the ground floor. The walls of the building were of concrete, and the only claim was that the walls, ceiling, and floor of the storeroom were soaked with water and unfit for occupancy while in that condition, but such condition was not shown to be other than temporary.

5. Landlord and Tenant. — Lease requiring lessees to keep building in repair required their restoring it to tenantable condition after unforseen casualty rendered it temporarily untenantable; no extensive repairs being required.

Appeal from Letcher Circuit Court.

HAWK & LEWIS for appellants.

HOGG & MOORE for appellee.

OPINION OF THE COURT BY JUDGE REES.

Affirming.

On July 10, 1925, the appellee, F. Simon, leased to the appellants a building in East Jenkins, Ky., for a period of five years beginning July 15, 1925, at a monthly rental of $75, payable in advance on the 15th day of each month. The building was a two-story structure with a basement. The first floor was a storeroom, and the second floor was constructed and equipped for residential purposes. The appellants occupied the building until December 24, 1929, and paid the rent to December 15, 1929. On the evening of December 24, 1929, a building on an adjoining lot caught fire and was partially destroyed. There was no organized fire department in East Jenkins, the fire soon got beyond control, and the fire department of the neighboring city of Jenkins was called upon for assistance. Members of the Jenkins fire department arrived on the scene with hose and other fire-fighting equipment, and succeeded in preventing the spread of the fire, though the building in which it started had been practically destroyed before their arrival. In order to save appellee's building from destruction, a hole was cut in the roof to afford an entrance for the fire hose and a large quantity of water was thrown into the building. Appellants' stock of merchandise, consisting principally of dry goods, was removed from the storeroom on the first floor by persons present at the fire, but not until some of it had been badly damaged by water.

Appellee was at his home in Neon, Ky., when the fire occurred, and appellants were at Norton, Va. On the morning after the fire appellee went to East Jenkins and had the roof on the building repaired. Appellants never reoccupied the building, but shipped the merchandise, which had been in the storeroom, to Neon, Ky., and Norton, Va., where they were also operating stores. On December 29, 1929, they sent to appellee a check for the rent due from December 15 to December 24, and notified him that they considered the contract at an end. Appellee returned the check and informed appellants that he would look to them for the rent for the remainder of the term.

After the expiration of the term, he brought this suit to recover the rent due from December 15, 1929, to July 15, 1930, amounting to $525, and on the trial of the case the lower court at the conclusion of the evidence sus...